In moving Amendment 10 and speaking to Amendment 11, I am returning to an unimplemented recommendation made in his March 2014 report by the independent reviewer about which I spoke at Second Reading and in Committee. These are the only amendments which relate to Part 2 on TPIMs. I want to make just five points.
First, the main and certainly the most contentious change in the TPIM regime brought about by Part 2 is the provision for internal relocation orders—internal exile, as it is being called. In short, it gives the Secretary of State power to require someone who is suspected of involvement in terrorism to move as far as 200 miles away from their present home. Not surprisingly, these highly disruptive kinds of order—which, in years past, used occasionally and contentiously to be made in control order cases—are deeply resented. Occasionally, however, I accept that they are a regrettable necessity.
Secondly, one of the conditions to be satisfied before any TPIM order can be made is that the individual in question is or has been involved in terrorism-related activity, which is known as condition A. Under the present legislation, the 2011 Act, that condition is met if the Secretary of State “reasonably believes” that that is the situation. Clause 20(1) of the Bill would substitute for the requirement of reasonable belief on
the part of the Secretary of State the requirement that he be satisfied on the balance of probabilities that the person is involved in terrorism.
Thirdly, to my mind there is no practical difference between those two tests, hence the effect of Amendment 10 would simply be to leave out Clause 20(1), which substitutes one for the other. But far, far more important than Amendment 10 is Amendment 11, which is directed to the court’s oversight powers with regard to TPIM orders. Under the 2011 Act as it stands there is provision for initial review hearings of these orders and later for appeals by the High Court in each case. However, for reviews and appeals, the 2011 Act expressly provides that:
“The court must apply the principles applicable on an application for judicial review”.
Amendment 11 would widen the court’s jurisdiction so that it would be for the court to decide for itself whether the person in question was probably involved in terrorism and not merely for the court, as now, to ask itself whether the Secretary of State’s conclusion about that was one that he could reasonably arrive at or whether it was, on the contrary, perverse.
Fourthly, this strengthening of the court’s oversight powers was specifically recommended by Mr David Anderson, the independent reviewer, in his report of last year. In his recent oral evidence that he gave in November and December respectively to the Joint Committee on Human Rights and the Home Affairs Committee of the House of Commons, he expressly regretted that his recommendation had not been implemented. In fact, Amendment 11 is more limited than Mr Anderson recommended. He recommended that in all TPIM cases the final decision on whether the person is or has been involved in terrorism-related activity should be one for the court rather than for the Secretary of State, subject only to judicial review. My amendment would secure that this is so only in those most troubling of cases that I have already mentioned where the suspect is to be relocated far away from his own home.
Fifthly and finally, I should note with gratitude that last Thursday, after the debate in Committee at which widespread support was shown for my amendment, the Minister was kind enough to see me to discuss this question. Essentially, as I understand it—he will correct me if I am wrong—the Government’s position is that this amendment is not necessary because case law shows that the court interprets and applies its review powers in such a way as to suggest that in effect the court already takes the final decision itself. If that remains the Government’s view, I would challenge it for these reasons.
First, it postulates, necessarily, that the court is disobeying the express statutory prohibition placed on it by the 2011 Act against exercising any fuller or wider jurisdiction than that of judicial review. Secondly, I must ask rhetorically why the independent reviewer would make this recommendation and, indeed, regret its rejection if in truth it is quite unnecessary. Thirdly, given that the Government accept that what they suggest is the court’s actual present approach to these cases—namely, that of deciding the question for itself—
why on earth not write that into the statute and thereby, as Mr Anderson himself put it in his report,
“help reinforce the legitimacy of TPIMs”,
and reassure a sceptical public and a worried minority community that the court is indeed playing its full part in safeguarding those at risk of these orders against the inappropriate use of this draconian power?
Amendment 11 is the important one. Amendment 10, as I indicated in Committee, is really an optional extra. I beg to move.